DETAILED ACTION
This office action is responsive to the amendment filed February 16, 2026. By that amendment, claims 1, 2, 7, 8, 23 and 29 were amended; and claim 21 was canceled. Claims 1, 2, 4, 5, 7-10, 15, and 22-31 are pending.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 16, 2026, has been entered.
Response to Arguments
Applicant’s arguments with respect to the rejection of claim(s) 1, 2, 4, 5, 7-1,0 15, and 21-31 under 35 USC 102(a)(1) in view of Suddaby (US 2023/0118386) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The newly presented rejections are necessitated by the amendments to the claims of February 16, 2026.
Claim Rejections - 35 USC § 112/Potential Drawing Objection
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 2, 4, 5, 7, 22-24 and 27 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The limitations related to the expansion mechanism causing the upper plates and lower plates to move both laterally and longitudinally are in question.
Claims 1, 2, 4, 5, 7, 22-24, and 26-28 are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. As discussed below, the metes and bounds of the claims are not clear based on the claims and commensurate disclosure.
Figures 1-3 are reviewed and are the only figures which appear to teach the claimed invention. Figs. 4-6 were not elected in the response to restriction of July 25, 2025, and subsequent interview of September 25, 2025. The expansion mechanism shown in figs. 7 and 8 does not achieve the claimed longitudinal movement. So therefore, only figs. 1-3 appear to be relevant and provide drawing support for the claimed movements.
Examiner agrees that plate portions 22, 24, 28 and 32, indeed, move in the claimed manners, in schematic fashion. However, how they do so, or what mechanism is present to permit this movement is not shown.
One reading the disclosure would not know how to build the claimed device based on only this disclosure. It would be unclear to one with ordinary skill in the art if a device they built was within the metes and bounds of these claims based on the original disclosure. The figures in question are presented in schematic fashion and provide very little detail to the structures of the invention.
Examiner turns to the specification for further understanding:
[0021] teaches “sliding motion” between adjacent plates.
[0022] discloses tongue and groove connections “that extend laterally and enable relative sliding movement of adjacent plates laterally from the overlapping and stacked relative positions on the top and bottom of the cage 12 represented in fig. 1 to the side-by-side relative positions represented in fig. 3”. Other equivalent connections enabling sliding movement can be employed. Tongue and groove connections are not shown in the figures.
[0023] discusses a rack and pinion mechanism; compressed spring device. Neither of these devices is demonstrated in the figures.
[0023] further states “By operation of an actuator of the compressed spring device, the compressed spring can be released to move adjacent plates in the sliding, separating relative movements as represented in fig. 2 to the side-by-side configuration of the adjacent plates represented in fig. 3.” [Wingdings font/0xDF] examiner believes this disclosure may be what achieves the longitudinal motion, but is unclear if this is the case; and if this spring actuator is brought into the claims, at least the issue of such being shown in the drawings will continue to be present, necessitating a drawing objection. Examiner is unclear what such a spring actuator is, how it functions, what it looks like, etc.
[0025] discusses use of an instrument to exert torque upon an expansion mechanism 34 to deploy the plates, such as use of a clamp, grasper, or screwdriver, to actuate a rotary actuator or spring mechanism. 34 is shown only schematically in the figures.
[0026] again discusses tongue and groove mechanisms to move the plates along linear paths. Such mechanisms are not demonstrated in the figures.
Clarification, in the claims, of how the movement in the longitudinal direction is achieved, is required. No new matter can be entered.
Claims 26-28 recite the limitation "the expansion mechanism" in line 3. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, this is treated as “an expansion mechanism”.
Specification
The amendment filed February 16, 2026, is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: this objection relates to the same claim limitations rejected under 35 USC 112(a) and (b), above. That same language has been added to the specification at this time. The amendment to the specification has added a linkage between movement of the expansion mechanism 34 and the plate portions which has caused the plate portions to move in the lateral and longitudinal directions. Such was not clearly presented in the originally filed disclosure, and is treated as new matter at this time.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Objections
Claim 8 is objected to because of the following informalities: at line 2, the semicolon should be replaced with a colon. Appropriate correction is required.
Claim 29 is objected to because of the following informalities: at line 8, the claim refers to “a cage”, though a cage was already recited at line 3. This should read “the cage”. Correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 8-10, 15, 25, 26, and 28-31 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stad et al. (US 8,900,305 B2).
Regarding claim 8, Stad teaches a device as at fig. 4C (compact configuration at fig.4A; details shown at figs. 1 and 2) for interbody vertebrae fusion between an upper vertebrae and a lower vertebrae comprising:
a cage 81 (plurality), the cage having a longitudinal dimension that is configured for insertion between the upper vertebrae and the lower vertebrae (up/down in fig. 4C), the cage having a top of the cage at a top of each 81 and a bottom of the cage at a bottom of each 81 that are longitudinally spaced;
the cage having a lateral dimension (left/right in fig. 4C), the lateral dimension being mutually perpendicular with the longitudinal dimension;
a plurality of upper plates 19/21/51 (each of the planks, and the top surface of the base 51 are considered to be plates) on the top of the cage 81, the plurality of upper plates 19/21/51 being connected to the top of the cage 81 in a compact configuration of the plurality of upper plates 19/21/51 (compact as in fig. 2 of 4A), the plurality of upper plates 19/21/51 in the compact configuration comprising at least a first upper plate of 51 positioned at the top of the cage 81 and second and third upper plates 19/21 positioned in overlapping and stacked positions longitudinally below the first upper plate 51 and on laterally opposite sides of the cage 81 with the second upper plate 19 positioned entirely below the first upper plate of 51 and the third upper plate 21 positioned entirely below the first upper plate of 51 in the compact configuration of the plurality of upper plates as best seen in figs. 1, 2 and 4A;
the plurality of upper plates 19/21/51 on the top of the cage being movable on the top of the cage 81 to side-by-side positions as seen at figs. 4B and 4C to achieve an increased combined surface area of the plurality of upper plates 19/21/51 at the top of the cage 81 with the combined surface area being configured to oppose additional surface area of an upper vertebrae at the top of the cage 81; and
a plurality of lower plates on the bottom of 81 similarly configured to the top plates – all limitations thereof having been identified in relation to the top plates 19/21/51.
Regarding claims 9 and 10, the plurality of upper and lower plates 19/21/51 on the top and bottom of the cage 81 are movable in laterally sliding movements on the top of the cage (compare figs. 4A and 4C).
Regarding claim 15, the plurality of upper and lower plates 19/21/51 is constructed of a material that promotes bone growth into the material of the plurality of the plates (col. 6, lines 4-6; col. 4, lines 61-67).
Regarding claim 25, the plurality of upper and lower plates 19/21/51 are operatively connected to the top and bottom of the cage 81 on opposite sides of the top and bottom of the cage (connected to both sides of the cage at the two portions 81).
Regarding claim 26, the plurality of upper plates is separated from the plurality of lower plates by the expansion mechanism positioned vertically between the plurality of upper plates and the plurality of lower plates: a part of 81 is considered to be an expansion mechanism in that when inserted between the two plate portions 51, 81 functions to expand the device.
Regarding claim 28, the expansion mechanism in this claim does not depend from the expansion mechanism of claim 26 so a different expansion mechanism can be referred to.
An expansion mechanism at handles 76 as demonstrated in fig. 3 (and clearly present in the cited embodiments) is operable to cause the plurality of upper and lower plates 19/21/51 to move relative to each other to side by side positions as in fig. 4C with the plurality of upper and lower plates 19/21 positioned on opposite sides of the top and bottom of the cage 81.
Regarding claim 29, Stad teaches a device for interbody vertebrae fusion as at fig. 4C between an upper vertebrae and a lower vertebrae comprising:
a cage (81 and portion of 51 below the top-most or bottom-most surface, thereof – e.g. the portion including the mechanism of fig. 1; hereafter, the cage will be referred to as 81 for brevity), the cage having a longitudinal dimension (up/down in fig. 4C) that is configured for insertion between the upper vertebrae and the lower vertebrae, the cage having a top of the cage and a bottom of the cage that are longitudinally spaced;
the cage having a lateral dimension (left/right in fig. 4C), the lateral dimension being mutually perpendicular with the longitudinal dimension;
a plurality of upper and lower plates 19/21/51 on the top and bottom of the cage 81, the plurality of upper and lower plates 19/21/51 on the top and bottom of the cage 81 being movable laterally on the top and bottom of the cage 81, the plurality of upper and lower plates 19/21/51 being connected to the top and bottom of the cage 81 in a compact configuration of the plurality of upper plates as in fig. 4A, the plurality of upper and lower plates 19/21/51 in the compact configuration comprising at least a first upper and lower plate 51 positioned at the top and bottom of the cage 81 and second and third upper and lower plates 19/21 positioned in overlapping and stacked positions longitudinally below or above the first upper and lower plate 51 with the second upper and plate 19 and the third upper and lower plate 21 positioned within a lateral dimension of the first upper and lower plate 51 and on laterally opposite sides of the cage 81; and
an expansion mechanism inside the cage 81 (at the portions of 51 which are below/or above the outermost-surface, of the endplates – e.g. the portion seen at fig. 1) operatively connected to the plurality of upper and lower plates 19/21/51, the expansion mechanism as at fig. 1 being configured to be operable to cause the plurality of upper and lower plates 19/21/51 to move laterally relative to each other to side-by-side positions (as by sliding 19/21 relative to 51 in the controlled fashion demonstrated in fig. 1) and achieve an increased combined surface area of the plurality of upper and lower plates at the top and bottom of the cage 81 with the combined surface area being configured to oppose additional surface area of an upper and lower vertebrae at the top and bottom of the cage 81.
Regarding claim 30, the plurality of upper plates 19/21/51 is separated from the plurality of lower plates 19/21/51 by the expansion mechanism of the two portions 51 positioned vertically between the plurality of upper plates and the plurality of lower plates 19/21/51.
Regarding claim 31, the expansion mechanism of portions 51 (as at fig. 1) is operable to cause the plurality of upper and lower plates 19/21/51 to move from overlapped relative positions to adjacent side-by-side relative positions (compare figs. 4A and 4C).
Allowable Subject Matter
No prior art rejection is made of claims 1, 2, 4, 5, 7, 22, 23, 24 and 27. The claims cannot be allowed until such time as the outstanding rejections under 35 USC 112 are overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to David Bates whose telephone number is (571)270-7034. The examiner can normally be reached Monday through Friday, 10AM-6PM
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If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Kevin Truong, at (571)272-4705. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID W BATES/Primary Examiner, Art Unit 3799